The July 12 arbitration award in the Philippines case against China under the United Nations Convention on the Law of the Sea (Unclos) isn’t only significant for East Asia and maritime law. It will also have implications for public international law and the peaceful settlement of international disputes generally.

Until now, arbitration hasn’t enjoyed much prominence in international relations. Cannon fire, even from water cannons, makes headlines. The tragic, albeit accidental, death of a single foreign fisherman produces more television coverage.

Even important arbitration awards, such as the 2014 Unclos tribunal’s decision to award 80% of the disputed area in the Bay of Bengal to Bangladesh rather than India, barely receive international media coverage at all. This helps China to argue that arbitration, like international court adjudication, is inconsistent with Asian values and not an accepted mode of peacefully settling disputes.

The seat of the Permanent Court of Arbitration at the Vredespaleis (Peace Palace) in The Hague, Netherlands. Photo: European Pressphoto Agency

China’s argument is refuted by the U.N. Charter and many treaties ratified by Asian countries, including China, requiring compulsory arbitration or adjudication. Moreover, as Singapore’s Ambassador Tommy Koh, who played an important role in the 1982 adoption of Unclos, has emphasized, a surprising number of Asian countries have chosen third-party decisions to resolve disputes.

Diplomats tend to play down international legal decisions. When in October 2012 I urged East Asian states to use arbitration or adjudication to help settle their territorial and maritime disputes, some diplomats dismissed the idea as unrealistic. I was therefore excited when, a month later, Japan’s departing Foreign Minister Koichiro Gemba challenged China to sue Japan before the International Court of Justice to determine sovereignty over the Senkaku Islands. Yet the Abe government has only hinted at following Mr. Gemba’s initiative.

It took the stunning Philippine arbitration case against China brought in 2013 to illustrate the value that international legal institutions can have for weak countries with no other defense against overwhelming power. The skillfully crafted Philippine legal briefs won my admiration.

Although rejected not only by China but also Taiwan, the tribunal’s elaborately researched and scrupulously reasoned responses proved just as impressive. They were even more so given the difficulties imposed by China’s nonparticipation and the tribunal’s mistaken refusal to permit Taiwan’s participation, out of exaggerated deference to Beijing’s “one China” policy.

Learned books will soon analyze the complex jurisdictional and substantive issues discussed. Here one can only mention the decision that has drawn the most immediate fire from both Chinas: the determination that the Spratly islands aren’t entitled to the 200-nautical-mile exclusive economic zone and continental shelf.

Unclos Article 121 grants an EEZ to all islands except “rocks which cannot sustain human habitation or economic life of their own.” The words of this confusing but crucial exception aren’t self-defining. They were a compromise among Unclos drafters who, unable to agree upon a more precise formulation, left these vague terms to be given concrete meaning case by case.

Despite Taiwan’s formal exclusion from the proceedings, the Chinese (Taiwan) Society of International Law managed to submit a strong “friend of the court” brief. It tried to demonstrate that Itu Aba (Taiping Dao), the largest of the Spratlys and the only one occupied by Taiwan, is a fully entitled island that doesn’t fall within Article 121’s exception.

But the tribunal decided that islands that lack a history of supporting settled human communities without substantial outside aid shouldn’t enjoy the enormous special rights to maritime and seabed resources that EEZ/continental-shelf status confers. To do otherwise, the tribunal declared, would violate the underlying purpose of Article 121 “to prevent States from claiming for themselves potentially immense maritime space . . . to the detriment of other coastal States and/or the common heritage of mankind.”

The tribunal conducted an extraordinarily exhaustive and frank examination of the language and drafting history of Unclos and previous law-of-the-sea negotiations. It also considered the limited extent to which practice and earlier decisions had shed light on the issue, relevant Asian historical developments, the region’s geography and geology, and the practical consequences of narrowly or broadly defining the exception.

Although initially sympathetic to Taiwan’s brief, I found the tribunal’s bold, lengthy and informative application of Article 121 more persuasive and a much-needed authoritative addition to the law of the sea. It embodies the admonition of the Vienna Convention on the Law of Treaties that international agreements must be interpreted in light of their major purposes. The tribunal erred in not allowing Taiwan adequate opportunity to state its case, but its decision on the merits was surely wise.

Tuesday, July 19, 2016

We are a Pacific nation with economic, military, and cultural ties to all the countries of the oceanic rim and treaty alliances with Japan, South Korea, Australia, the Philippines, and Thailand. With them, we look toward the establishment of human rights for the people of North Korea. We urge the government of China to recognize the inevitability of change in the Kim family’s slave state and, for everyone’s safety against nuclear disaster, to hasten positive change on the Korean peninsula. The United States will continue to demand the complete, verifiable, and irreversible dismantlement of North Korea’s nuclear weapons program with full accounting of its proliferation activities. We also pledge to counter any threats from the North Korean regime.

We salute the people of Taiwan, with whom we share the values of democracy, human rights, a free market economy, and the rule of law. Our relations will continue to be based upon the provisions of the Taiwan Relations Act, and we affirm the Six Assurances given to Taiwan in 1982 by President Reagan. We oppose any unilateral steps by either side to alter the status quo in the Taiwan Straits on the principle that all issues regarding the island’s future must be resolved peacefully, through dialogue, and be agreeable to the people of Taiwan. If China were to violate those principles, the United States, in accord with the Taiwan Relations Act, will help Taiwan defend itself. We praise efforts by the new government in Taipei to continue constructive relations across the Taiwan Strait and call on China to reciprocate. As a loyal friend of America, Taiwan has merited our strong support, including free trade agreement status, the timely sale of defensive arms including technology to build diesel submarines, and full participation in the World Health Organization, International Civil Aviation Organization, and other multilateral institutions.

China’s behavior has negated the optimistic language of our last platform concerning our future relations with China. The liberalizing policies of recent decades have been abruptly reversed, dissent brutally crushed, religious persecution heightened, the internet crippled, a barbaric population control two-child policy of forced abortions and forced sterilizations continued, and the cult of Mao revived.

Critics of the regime have been kidnapped by its agents in foreign countries. To distract the populace from its increasing economic problems and, more importantly, to expand its military might, the government asserts a preposterous claim to the entire South China Sea and continues to dredge ports and create landing fields in contested waters where none have existed before, ever nearer to U.S. territories and our allies, while building a navy far out of proportion to defensive purposes. The complacency of the Obama regime has emboldened the Chinese government and military to issue threats of intimidation throughout the South China Sea, not to mention parading their new missile, “the Guam Killer,” down the main streets of Beijing, a direct shot at Guam as America’s first line of defense. Meanwhile, cultural genocide continues in Tibet and Xinjiang, the promised autonomy of Hong Kong is eroded, the currency is manipulated, our technology is stolen, and intellectual property and copyrights are mocked in an economy based on piracy. In business terms, this is not competition; it is a hostile takeover. For any American company to abet those offenses, especially governmental censorship and tracking of dissenters, is a disgrace.

The return to Maoism by China’s current rulers is not reason to disengage with the Chinese people or their institutions. We welcome students, tourists, and investors, who can see for themselves our vibrant American democracy and how real democracy works. We caution, however, against academic or cultural operations under the control of the Chinese government and call upon American colleges to dissociate themselves from this increasing threat to academic freedom and honest research.

Most of the nations of Southeast Asia have set aside crippling ideologies and sought material progress in free enterprise and democracy. We congratulate the people of Burma on their emergence from authoritarian rule and urge their respect for the rights of their country’s minority populations. Our improved relations with Vietnam — including arms sales — must advance efforts to obtain an accounting for, and repatriation of the remains of, Americans who gave their lives in the cause of Vietnamese freedom. We cannot overlook the continued repression of fundamental rights and religious freedom, as well as retribution against ethnic minorities and others who assisted U.S. forces during the conflict there.

India is our geopolitical ally and a strategic trading partner. The dynamism of its people and the endurance of their democratic institutions are earning their country a position of leadership not only in Asia but throughout the world. We encourage the Indian government to permit expanded foreign investment and trade, the key to rising living standards for those left out of their country’s energetic economy. For all of India’s religious communities, we urge protection against violence and discrimination. Republicans note with pride the contributions to our country that are made by our fellow citizens of Indian ancestry.

Conflicts in the Middle East have created special political and military challenges for the people of Pakistan. Our working relationship is a necessary, though sometimes difficult, benefit to both, and we look toward the strengthening of historic ties that have frayed under the weight of international conflict. This process cannot progress as long as any citizen of Pakistan can be punished for helping the War on Terror. Pakistanis, Afghans, and Americans have a common interest in ridding the region of the Taliban and securing Pakistan’s nuclear arsenal. That goal has been undermined by the current Administration’s feckless treatment of troop commitments and blatant disregard of advice from commanders on the ground, particularly with regard to Afghanistan. A Republican president will work with all regional leaders to restore mutual trust while insisting upon progress against corruption and the narcotic trade that fuels insurgency.

Jeffrey Wasserstrom’s perceptive new book, Eight Juxtapositions: China Through Imperfect Analogies, presents some unlikely comparisons that are designed to challenge perceptions about China. Wasserstrom, a professor of history at the University of California, Irvine, acknowledges flaws in his analogies — which include an exploration of the similarities between Chinese President Xi Jinping and Pope Francis — but makes a persuasive case that they are useful in making sense of contemporary China. He draws eyebrow-raising parallels between Japan in Manchuria and China in Tibet, and links these incursions with America’s delusional intervention in Iraq — a comparison that sheds new light on a debacle that plunged the Middle East into its current maelstrom.

The way Washington flouted the U.N. in the Iraq invasion and selectively adheres to international law provides useful perspective on the pundits and officials now sanctimoniously denouncing China for its hegemonic ambitions in Asia. The U.S. opted out of the International Criminal Court, probably reflecting concerns in the administration of George W. Bush that some members might be held accountable for war crimes.

It is also worth recalling that Australia won its 2014 case in the International Court of Justice, when it challenged the legality of Japan’s research whaling in the Antarctic Ocean. But, since then, Japan has shrugged off that ruling and resumed the practice. There are plenty of sinners at the altar of international law.

Much has been made of the recent decision by an international arbitration court that comprehensively rejected China’s historic claims of control over the disputed Spratly Islands in the South China Sea. It was the right call, but will it constrain China? Probably not.

The ruling is binding and carries region-wide implications, but there is no enforcement mechanism or any suggestions about how China and its Asian maritime neighbors can resolve the dispute. The best outcome of the ruling would be for Beijing and the other claimants to begin negotiations about reaching mutually acceptable settlements. That could happen, but its important for all sides to dial down the rhetoric — and intimidation.

America dispatched two of its carrier strike groups to the South China Sea on the eve of the ruling, but this is a counterproductive gesture. China will not be seen to kowtow to the U.S. Washington wants to reassure its Asian friends that it has a dog in this fight, but what can such bellicose posturing achieve? It increases the risk of a miscalculation that could spiral out of control. America doesn’t take a position on sovereignty over the disputed islands, so it surely wants to avoid going to war over them. The naval grandstanding risks exposing the weakness of the U.S. position.

After all the smoke clears, and praetorian posturing abates, Beijing must make a decision: Is it ready to become a rogue state by imposing its territorial claims with old-fashioned gunboat diplomacy?

Lets examine the July 6 speech given in Washington by former Chinese state councilor Dai Bingguo about Beijing’s regional intentions. He spoke of “finding truth from facts,” a sure sign in Chinese that listeners can expect some tremendous whoppers to follow, in this case regarding Beijing’s claims in the South China Sea. He also said bilateral relations should be based on mutual respect and equality, before denying Beijing’s desire “to make the South China Sea an Asian Caribbean Sea and impose the Monroe Doctrine to exclude the U.S. from Asia.” Interesting analogy. A Chinese version of the U.S. Monroe Doctrine is exactly what Washington worries about — it is unaccustomed to being hoisted with its own petard.

Back in 1823, under President James Monroe, the U.S. basically declared the Americas off-limits to European powers, grandfathering their existing colonies but asserting that it would henceforth decide what went on in the region.

One reason Asia might be chary about a Chinese Monroe Doctrine is the 1904 Roosevelt Corollary. President Theodore Roosevelt expanded the Monroe Doctrine, insisting that America had the right to intervene in the internal affairs of any of its regional neighbors if it saw fit to do so. Subsequently, Washington has found numerous pretexts to repeatedly intervene in the Americas, brandishing its values while often sabotaging democracy and routinely taking the side of despots who violated human rights.

But President Xi is decidedly brasher about what China wants. The nation will not shilly-shally about modifying the status quo to its advantage. China’s rapid economic growth has facilitated a sweeping military modernization, one that is transforming the geostrategic landscape in Asia. Tokyo and Washington are alarmed about this development, but other nations in the region have evaded addressing it.

Most likely the “Xi corollary” will embrace more subtle methods. Rather than a policy of military intervention, this may be a militarized and monetized diplomacy where China brandishes hard power while averting confrontation with the U.S. military — an effective salami-slicing strategy. It’s unlikely China will provoke an all-out clash, but it will play the long game by poking and prodding in a bid to show that it will not back down, while shaking regional faith in America’s capacity and long-term commitment.

Carrots are being dangled, too: The new China-led Asia Infrastructure Investment Bank will funnel loans to regional counterparts, enabling Beijing to translate its financial resources into tangible leverage in Asia. Moreover, China’s booming market makes it an irresistible magnet for economies across the globe, again conferring considerable clout and influence that looms especially large in the region.

Xi is trying to assert a new normal in Asia — a more muscular Chinese presence — but he has overplayed the nation’s hand. The backlash in Asia may seem guarded, but Beijing’s stance smacks of “American exceptionalism” — a misguided belief that might makes right.

The rejection of China’s claims over the disputed Spratly Islands has stoked China’s overweening pride, its sense of victimhood and historical resentments that draw on the wellspring of national humiliation from when it was prey to the depredations of Western and Japanese imperialism.

This is why China is not eager to become a “responsible stakeholder” in an international system it views as fundamentally hostile to the nation regaining it rightful place at the helm of Asia. Power is transforming China and feeding its appetite for revanchism. And, like America, it is not programmed to take no for an answer.

China seems insistent on writing the rules for a Sino-centric Asia, apparently yearning for the days when vassal states cowered at its feet. But this nostalgia clashes with 21st-century realities. Having experienced the humiliations of imperialism, surely it should know better.

About Us

APP is a Washington research center studying the U.S. policy relationship with Northeast Asia. We provide factual context and informed insight on Asian science, finance, politics, security, history, and public policy.